SENTENCING STATEMENTS

Sheriff Komorowski made the following remarks in court:

"This prosecution concerns contraventions of the criminal law with respect to health and safety by Lothian Health Board at the Western General Hospital leading to the deaths of two patients.

Robert Swan was a man of 55 years of age, physically fit and active and, until shortly before the events leading to his death in October 2017, of apparently good mental health.  A personal crisis appears to have led to acts of self-harm which required surgery and treatment as an inpatient at the Western General Hospital.  Whilst there, he again harmed himself and exited through a window, the fall from there causing his death.  He was on a ward dealing with individuals who might suffer from mental confusion or other mental disturbances arising from their illness or as a consequence of surgical treatment.  

The windows should have been secured so that they could only be opened to a very narrow extent, to make it impossible for someone to fall or leap from.  Devices had been installed to limit how far the windows opened, they were intended to limit the opening to no more than 100 millimetres, after an accident two years before, but no-one checked in any real or practical sense to see that the devices were and remained effective at stopping the windows being opened too far.  In fact the windows could be pushed open further and, as has tragically been shown, could be prised open with a determined effort far enough for a man to get through.

Michael Milne was receiving extensive treatment for terminal cancer.  He was admitted to the Western General in January 2021 when his condition had declined to such an extent that his behaviour was significantly affected and he was suffering delirium.  It was decided he should be kept detained in the hospital on a compulsory basis under the mental health laws.  He had proven determined and industrious in efforts to leave the ward.  On one occasion he had removed ceiling tiles in a shower room.  In normal times he would have been moved to a secure ward, but due to concerns about moving patients between wards during the COVID pandemic, a record was made that he ought to be kept under one-to-one supervision.  But that direction was not followed.  Instead, nurses who had been looking after him might be called away for a time to attend to the pressing and immediate needs of other patients.  On 28 January 2021, the relevant staff nurse said she did not have time to read the electronic notes, which included the one to one supervision requirement, till ninety minutes into her shift, as she was very busy.  About that time, Michael Milne got up, left the ward, and made his way through an extensive part of the hospital, getting onto the roof by breaking out of a staff toilet window, and then falling from that roof through another window into the interior of the building, ultimately resulting in his death.

Robert Swan's family must have hoped that he could be helped through his crisis and be adequately looked after until he might recover a stable state of mind, and possibly return to the active healthy life he had enjoyed.  Michael Milne's family would have expected him to be cared for and supervised in his last days and that, whilst his death could not be averted, his end would come some months later from natural causes rather than in the especially traumatic and senseless manner in which occurred.  The hospital board failed in its duties to care and protect its patients who were suffering from despair or delirium.  The failure is basic and profound, in its most fundamental duties to its vulnerable patients.

After the death of Robert Swan, the windows on the ward have been fastened shut, so that it is impossible to open them at all.  After the death of Michael Milne, staff procedures have been altered and training has been implemented.  Staff now understand that one to one supervision requires a specific member of staff to be on attendance with a patient at all times, an identified member of staff will be allocated to this task, and communication methods have been improved.  Significantly, in my view, any one to one supervision requirement will now be communicated at staff handover at the outset of each shift.  These measures ought to avoid accidents of the particular kinds I have described from recurring. They have met with the approval of the Health and Safety Executive; the HSE do not say any further action is required.

The sentencing of a public body, and a health board in particular, poses particular challenges.

Usually, a fine operates as a punishment and a deterrent.  The way this works on an individual is obvious.  On a commercial business, it deprives the company of funds that they could have otherwise been passed on as profits to its owners, the shareholders, and it provides a disincentive to directors (and the shareholders who vote for them) to try and cut corners with health and safety to save money.

But a public body has no shareholders.  In a sense its owner is the government, or the public. Those who benefit from it are not shareholders but, with respect to this health board, its patients.  A fine does not result in money being taken away ultimately from shareholders, but rather from the part of the public served by that public body.  It involves ultimately a transfer back of money allocated from Scottish Government funds as a fine back to Scottish Government central funds.

Every £1 of a fine is a £1 less for public services served by that public body, it is a deduction from a budget that the democratically elected or democratically accountable decision makers have thought that the public body needs and out to have to carry out its functions.

As has been observed by Lord Beckett in the High Court of Justiciary, this is not a new dilemma, but one that has to be carefully considered.  Lawyers representing the Health Board do not suggest there should not be a fine, they accept there must be a substantial fine.  It is an established practice, both in the sheriff court and the High Court, for public bodies and health boards in particular, and both North and South of the border, that such fines are imposed.  But equally it is common practice to make a substantial adjustment to the level of fine, compared to that which might be imposed on a commercial enterprise.  NHS Lothian Health Board is currently in deficit, and made cuts so that the money going out in payments for goods and services paid to serve its patients is less than it receives in public funds in efforts to pay down that deficit.

There are no sentencing guidelines presently in Scotland for breaches of health and safety legislation.  I have considered what penalty the English guidelines would indicate.  The English guidelines set out four levels of culpability (or wrongdoing), three levels of seriousness of harm and three levels of risk, and then require account to be taken of the size of the organisation.

In Robert Swan's case, I consider the level of wrongdoing to be "medium" as that term is used in the English guidelines.  The Board was put on notice from a previous accident, it took measures to secure the windows, but what was done to make sure the remedy worked and remained working was utterly inadequate, almost completely absent.  The seriousness of harm is, of course, of the highest level but when regard is had to the number of patients passing through that ward and the determined effort that was likely to enable someone to get through the window, I consider that in the particular combination of features of this case the likelihood of harm was low.  According to the English guidelines that results in 'harm category 3'.

In Michael Milne's case, I consider the level of wrongdoing again to be at 'medium'. The risks Michael Milne posed to himself were obvious, that was why he was put on 1:1 supervision, but the lack of understanding and the failure to properly communicate this requirement lasted over several days, it was a fundamental failing and it was inexplicable. The likelihood of harm for Michael Milne was high, the risks a confused patient would pose to himself if he left the ward unescorted were substantial.  That results in 'harm category 1' in terms of the English guidelines.

I will take a similar approach to Lord Beckett when dealing with the prosecution of Police Scotland, and treat Lothian Health Board as a 'large organisation' for the purposes of the English guidelines.

For a commercial enterprise, I might have imposed a fine in respect of the failings which resulted in the death of Robert Swan of around £190,000.  I take account here of the fact the failing resulted in death, but also the steps taken by the Health Board to admit failings, cooperate with the investigation and prevent recurrence.

I shall follow a similar approach to that which has been done before in Scotland and reduce that by about two thirds to account for this fine being imposed on a public authority meeting critical needs, and currently making savings to address a deficit.  That would result in a fine of £65,000.  I will reduce that by about a further third, in accordance with general sentencing law and practice, to take account of the early guilty plea.  That results in a fine of £45,000.

For a commercial enterprise, I might have imposed a fine in respect of the failings which resulted in the death of Michael Milne of £800,000.  That a death occurred from those failings would normally require a higher starting point but as well as the Health Board's admission of failings, cooperation and steps taken to prevent recurrence I take account of the challenges posed by the COVID pandemic resulting in efforts to manage the needs and risks of this patient in a manner that would, in normal times, have been taken care of by transfer of the patient to a secure ward.  Reducing that that by about two thirds to account for this fine being imposed on a public authority in the circumstances I have described results in a fine of £265,000.  Again, I will reduce that by about a further third, due to the early guilty plea.  That results in a fine of £175,000. To that the law requires a victim surcharge to be added of 7.5%."

21.03.24